22CA2222 Peo v West 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2222 City and County of Denver District Court No. 20CR20005 Honorable Christopher J. Baumann, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dwan K. West,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE BERNARD* Kuhn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 24, 2025
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Joseph Chase, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 A jury convicted defendant, Dwan K. West, of second degree
murder and illegal discharge of a firearm, and the trial court
sentenced him as a habitual offender. He appeals. We affirm.
I. Background
¶2 Defendant had a beef, which may or may not have been gang-
related, with a woman named C.F. At the end of May 2020, they
were involved in a confrontation in a store. C.F. told one of her
companions to shoot defendant, using a racial epithet. The
companion did so, wounding defendant in the calf.
¶3 The next day, there was another encounter and another
altercation. C.F. again ordered a companion to shoot defendant,
using the same racial epithet. The companion fired, wounding
defendant twice in his shoulder.
¶4 At this point, defendant said that he was “terrified” because
there had been “two attempts on [his] life.” In addition to getting
shot twice, he and his family had been “attack[ed]” at their
apartment complex, and they therefore could not go home. Their
lives were “in danger.”
¶5 In mid-June, defendant and his family drove to pick up an
order from a food truck on Colfax Avenue. His wife parked blocks
1 away from the truck, and, leaving his family in his car, he walked
toward the truck. He carried a pistol in his hand, and its safety
was off. He was “in fear of my life as well as my stepkids’ life, my
common-law wife’s life, as well as my close friends, after two attacks
have already been made on my life.”
¶6 According to defendant, he saw C.F. She once again, using
the same racial epithet, instructed the man with her, A.F., to shoot
defendant. (There was no evidence that A.F. had been present at
either of the two prior shootings.)
¶7 Defendant saw A.F. pull out a gun, rack it, and point it at him.
Defendant thought he was “getting ready to die that day. I may not
make it home. I might not see my family again . . . . [I]f I don’t act
right now, I’m possibly about to die.” It was him or A.F.
¶8 Defendant fired six shots, but A.F. did not fire any. One bullet
struck A.F. A.F. fell, and, defendant said, A.F.’s gun clattered to the
ground. Defendant sprinted away. He later said that he was acting
in self-defense.
¶9 A.F. lingered for several weeks until he died.
¶ 10 There were some holes in defendant’s story.
2 ¶ 11 The shooting was captured on video by an onlooker. It showed
defendant walking up to the food truck slowly, then accelerating
toward A.F., and then shooting him.
¶ 12 The gun that A.F. supposedly had was never recovered; the
only evidence of a firearm at the scene was shell casings from
defendant’s gun. A detective testified that he did not “encounter
anything that might suggest that [A.F.] was armed at the time that
he was shot,” and he did not find evidence of any altercation
preceding the shooting.
¶ 13 The food truck owner did not hear any threats, see any
weapons, or observe any fighting before defendant shot A.F. No one
said anything to defendant before he opened fire.
¶ 14 Rather, the food truck owner saw defendant, who was dressed
all in black and wearing the hood from his hoodie over his head,
walk swiftly by the truck and start to fire his handgun. The owner
saw some muzzle flashes, and he then saw defendant walk swiftly
away.
¶ 15 The prosecution charged defendant with first degree murder,
illegal discharge of a firearm, first degree assault, and six counts of
3 possession of a weapon by a previous offender. At trial, the only
issue was whether defendant acted in self-defense.
II. Evidence of Self-Defense
¶ 16 Defendant contends that the court’s ruling excluding certain
evidence of self-defense was erroneous, and the court’s decision
deprived him of his constitutional right to present a defense. We
disagree.
A. Additional Background
¶ 17 At trial, defendant testified that, after he had been shot in the
calf and shoulder, and a couple of weeks before he shot A.F., he
learned that “someone had a hit on [him].” He testified that a friend
had sent him a text message of a Facebook post containing his
picture, bearing the caption “SOS.” Defense counsel wanted to
introduce this post into evidence.
¶ 18 The prosecutor promptly objected, and the court dismissed the
jury to discuss the objection. Defense counsel said that “SOS”
meant “shoot-on-sight.” The Facebook post, counsel continued,
therefore supported defendant’s self-defense claim because it
helped explain his fearful state of mind shortly before the shooting
at the food truck.
4 ¶ 19 The prosecutor responded: “The fact that someone out on the
internet might have posted a hit on him, might have posted this
message and the way that [defendant] feels about that” is irrelevant
because “they have to be able to show that there’s a connection to
[A.F.] in this case and that’s what caused the imminent fear. They
haven’t done that at all.”
¶ 20 When asked about the connection between the Facebook post
and A.F., defense counsel said that “[i]t’s my understanding that
[the post] is attributed to potentially the Bloods,” a criminal gang,
because the Facebook post “says CMGB, which is Crenshaw Mafia
Gangster Bloods[,] SOS.” (C.F. and A.F. were both allegedly
members of this gang.)
¶ 21 “[B]ut,” defense counsel said, “I don’t want to get into that.”
Instead, counsel “want[ed] to keep it limited” to the SOS component
of the Facebook post “so we don’t open the door to the gang stuff.”
(The parties agreed before trial that they would not go into
defendant’s or A.F.’s alleged gang affiliations.)
¶ 22 The court decided that it would not admit defendant’s
testimony about the Facebook post:
5 My concern is based on the offer of proof from [d]efense that there is no connection or nexus to the shooting at the food truck. And evidence that the defendant is on a, I guess, heightened state of alert in general because of a [Facebook post] that was relayed to him by an acquaintance without any connection to [A.F,] or [C.F.] or otherwise is, in my opinion or judgment, irrelevant and excludable under [CRE] 401, 402. . . .
B. Standard of Review and Applicable Law
¶ 23 “We review a trial court’s evidentiary rulings for abuse of
discretion.” Nicholls v. People, 2017 CO 71, ¶ 17. A trial court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, unfair, or is based on a misunderstanding or
misapplication of the law. People v. Thompson, 2017 COA 56, ¶ 91.
¶ 24 Evidence is relevant if it tends to make a fact of consequence
more or less probable. CRE 401. “Evidence which is not relevant is
not admissible.” CRE 402.
¶ 25 A trial court’s erroneous evidentiary ruling may amount to
constitutional error if it deprives the defendant of a meaningful
opportunity to present a complete defense. People v. Conyac, 2014
COA 8M, ¶ 93; see also Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009)(“[T]he standard or test for assessing whether a
6 defendant’s right to confront or present a defense has been violated
by evidentiary rulings is clearly dependent upon the extent to which
he was permitted to subject the prosecutor’s case to ‘meaningful
adversarial testing.’” (quoting Crane v. Kentucky, 476 U.S. 683, 691
(1986))). “A defendant’s right to present a defense is violated only
where the defendant was denied virtually his only means of
effectively testing significant prosecution evidence.” Conyac, ¶ 93.
C. Analysis
¶ 26 Defendant contends that the court erred when it excluded his
testimony about the Facebook post. He asserts that such testimony
was relevant to the issue of whether he acted in self-defense
because it made his reasonable belief in imminent danger more
probable than it would have been without the testimony. See § 18-
1-704(1), (2)(a), C.R.S. 2024 (a person is justified in using deadly
force upon another person to defend himself from that person if,
among other things, he has reasonable ground to believe that he is
in imminent danger of being killed or receiving great bodily injury).
He reasons that C.F. had told someone to shoot him on two
previous occasions, “so his belief in imminent danger would
7 obviously increase once he realizes [C.F.]’s people were putting out
a message to shoot him on sight.”
¶ 27 But defense counsel chose not to present evidence of gang
affiliation, which included evidence of who “C.F.’s people” were.
Without such evidence, defendant’s testimony about the Facebook
post would not logically relate to the issue of self-defense because it
did not make it more probable that defendant feared imminent
danger of being shot by A.F. at the food truck. Cf. People v.
Jimenez, 217 P.3d 841, 866 (Colo. App. 2008)(the usefulness of
testimony, for purposes of relevance, “hinges on whether there is a
logical relation between the proffered testimony and the factual
issues involved in the case.” (quoting People v. Ramirez, 155 P.3d
371, 379 (Colo. 2007))).
¶ 28 Indeed, defendant concedes as much by asserting in his
opening brief that his testimony about the Facebook post “made it
more probable that [he] believed that he was in danger at any time
and any place.” (Emphasis added.) This is insufficient to establish
relevance because, to conclude that defendant was legally
authorized to use deadly physical force upon another person, the
jurors needed to find that defendant (1) used that deadly physical
8 force “in order to defend himself . . . from what he reasonably
believe[d] to be the use or imminent use of unlawful physical force
by that other person,” and (2) “ha[d] a reasonable ground to believe,
and [did] believe, that he . . . [was] in imminent danger of being
killed [by] or of receiving great bodily injury” from that other person.
See § 18-1-704(1), (2)(a). Without evidence indicating that A.F. was
an intended recipient of the Facebook post, the post, by itself, did
not show that defendant (1) reasonably believed that A.F. would
use, or was about to use, unlawful physical force against him, or (2)
had reasonable grounds to believe, and did believe, that A.F. was
imminently about to kill him or inflict great bodily injury on him. In
other words, the gang evidence that counsel declined to introduce
would have linked the Facebook post and the reasonableness of
defendant’s alleged belief that A.F. was going to try to kill him.
¶ 29 We therefore conclude that the record supports the court’s
determination that evidence about the Facebook post was irrelevant
under CRE 401 and 402. As a result, the court’s decision to
exclude the evidence was not manifestly arbitrary, unreasonable,
unfair, or based on a misunderstanding or misapplication of the
law. See Thompson, ¶ 91.
9 ¶ 30 Because the evidence of the Facebook post was not relevant, it
was not admissible. CRE 402 (“Evidence which is not relevant is
not admissible.”). Defendant therefore could not use it to support
his self-defense claim because he did not “have an unfettered right
to offer [evidence] that [was] incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Taylor v. Illinois,
484 U.S. 400, 410 (1988).
¶ 31 We further conclude that the exclusion of the evidence
concerning the Facebook post did not deprive defendant of his
constitutional right to present a defense. That right “requires only
that the accused be permitted to introduce all relevant and
admissible evidence.” People v. Scearce, 87 P.3d 228, 233 (Colo.
App. 2003)(emphasis added); accord People v. Sims, 2019 COA 66,
¶ 52. “[T]he right to present a defense does not guarantee a
defendant a right to question witnesses in violation of the rules of
evidence . . . .” Scearce, 87 P.3d at 233.
III. Defendant’s Habitual Criminal Sentence
¶ 32 Defendant raises two issues concerning his habitual criminal
sentence. First, he asserts that the court did not conduct an
adequate abbreviated proportionality review. Second, he submits
10 that, applying Erlinger v. United States, 602 U.S. 821 (2024), a jury,
instead of the court, should have decided factual questions such as
whether defendant’s prior convictions had been separately brought
and tried, whether defendant was the person who had been
convicted in those prior cases, and whether the prior crimes were
“eligible” as predicate convictions. Because a jury did not make
those decisions, he continues, we should reverse his habitual
criminal sentence and remand the case to the court for sentencing
within the statutory range for second degree murder. We disagree
with both assertions.
A. Gross Disproportionality
1. Additional Background
¶ 33 The prosecution charged defendant as a habitual criminal
based on six prior felony convictions: aggravated robbery, three
theft convictions, possession of a weapon by a previous offender,
and providing false information to a pawnbroker. At the habitual
criminal evidentiary hearing, the prosecution presented evidence
that defendant had committed these six offenses; his aggravated
robbery conviction had involved the use of a deadly weapon; and, as
to one of his theft convictions, the prosecution had originally
11 charged him with burglary, assault, menacing, theft, and robbery
because the circumstances involved entering a residence and
strangling someone.
¶ 34 The court determined that the prosecution had proven each of
the prior felonies and adjudicated defendant a habitual criminal
under section 18-1.3-801(2)(a)(I), C.R.S. 2024. It imposed
sentences of ninety-six years for the second degree murder
conviction and twelve years for the illegal discharge of a firearm
conviction, to be served concurrently. See § 18-1.3-801(2)(a)(I)(A);
§ 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2024.
¶ 35 The court then conducted an abbreviated proportionality
review of defendant’s sentence, finding that the second degree
murder conviction, the illegal discharge of a firearm conviction, and
the aggravated robbery conviction were all grave and serious. The
court said:
Given that this is a second[]degree murder case, given the history that’s been described today during the hearing, including a prior aggravated robbery offense, also three convictions for felony theft, also a conviction for possession of a weapon by a previous offender, the [c]ourt does not find that the sentence of [ninety-six] years is grossly
12 disproportionate. And, therefore, the [c]ourt will decline to reduce that sentence.
2. Standard of Review and Applicable Law
¶ 36 We review de novo whether a sentence is grossly
disproportionate in violation of the constitutional protection against
cruel and unusual punishment. Wells-Yates v. People, 2019 CO
90M, ¶ 35.
¶ 37 In evaluating whether a sentence is grossly disproportionate, a
court must conduct an abbreviated proportionality review by
comparing the gravity or seriousness of the offense and the
harshness of the penalty. Id. at ¶ 7. In the habitual criminal
context, “[a]s to each sentence, the inquiry is whether the
corresponding triggering offense and the predicate offenses,
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.” Id. at ¶ 24.
¶ 38 For crimes that have not been designated as per se grave and
serious offenses, the court considers “the harm caused or
threatened to the victim or society” and “the culpability of the
offender” to determine whether a crime is grave and serious. Id. at
¶ 12 (quoting Solem v. Helm, 463 U.S. 277, 292 (1983)). “This
13 analysis generally requires a consideration of the facts and
circumstances underlying the defendant’s conviction.” People v.
Caime, 2021 COA 134, ¶ 43. The court should also consider “any
relevant legislative amendments enacted after the dates of those
offenses, even if the amendments do not apply retroactively.”
People v. McRae, 2019 CO 91, ¶ 13.
¶ 39 If the abbreviated proportionality review “does not give rise to
an inference of gross disproportionality, the proportionality
challenge fails and the sentence must be upheld.” Wells-Yates, ¶ 8.
3. Analysis
¶ 40 Defendant concedes that the court properly found his second
degree murder conviction, his illegal discharge of a firearm
conviction, and his aggravated robbery conviction were all grave
and serious. But he asserts that we must remand for a new
abbreviated proportionality review because the court did not
conduct a “refined analysis” of his remaining predicate offenses —
namely, the three theft convictions, the possession of a weapon by a
previous offender conviction, and the providing false information to
a pawnbroker conviction. As we understand his argument, he
submits that, if the court had considered the underlying facts of
14 these predicate offenses and any relevant legislative amendments to
the statutes upon which they were based, it would have found that
they are not grave and serious.
¶ 41 We conclude, for the following reasons, that (1) the court was
not required to do what defendant says it should have done, and
(2) the record supports the court’s determination that defendant’s
habitual criminal sentence was not grossly disproportionate. See
id. at ¶ 35.
¶ 42 Rather than deciding that each predicate offense was grave
and serious, the court was only required to consider “whether each
triggering offense and the predicate offenses, in combination, are so
lacking in gravity or seriousness as to give rise to an inference that
the sentence imposed on that particular triggering offense is grossly
disproportionate.” Id. at ¶ 38 (emphasis added); see also People v.
Strock, 252 P.3d 1148, 1158 (Colo. App. 2010)(“[I]t is not necessary
for each offense to be grave and serious for a court to conclude that
the offenses taken together are grave and serious.”). The court
complied with this requirement when, as we have quoted above, it
considered all the offenses together and concluded that, in
combination, they were sufficiently grave and serious.
15 ¶ 43 Even if we were to assume that the theft convictions, the
possession of a weapon conviction, and the false information
conviction were not grave and serious, the court had determined
that three other offenses — the second degree murder conviction
and illegal discharge of a weapon conviction in this case, and the
aggravated robbery conviction — were grave and serious. This was
enough to avoid an inference of gross disproportionality. See Rutter
v. People, 2015 CO 71, ¶¶ 24-25 (upholding the defendant’s
habitual sentence even though only the triggering offense was grave
and serious); People v. Cooper, 205 P.3d 475, 481 (Colo. App.
2008)(upholding the defendant’s habitual sentence even though
neither the triggering nor the predicate offenses were individually
grave and serious), abrogated on other grounds by Scott v. People,
2017 CO 16. Accordingly, we reject defendant’s assertion that we
must remand this case for a new abbreviated proportionality review.
B. Findings During the Habitual Criminal Proceeding
¶ 44 Under section 18-1.3-803(1) and (4), C.R.S. 2024, trial courts
used to hold post-conviction evidentiary hearings to decide whether
defendants would be sentenced as habitual criminals. (The
16 legislature recently amended that statute, and juries will make that
decision from now on. 2025 Colo. Legis. Serv. Ch. 25-189 (West).)
¶ 45 At the habitual criminal evidentiary hearing in this case, the
court asked whether the defense had any preliminary issues.
Defense counsel said, “[W]e object — we think the — this trial needs
to go to a jury under the United States and Colorado Constitutions.”
The prosecution responded that, under Apprendi v. New Jersey, 530
U.S. 466 (2000), defendant was not entitled to a jury on the
habitual criminal counts. Defense counsel replied,
[O]ur response is Apprendi says that any sort of evidence that enhances a sentence needs to go to the jury. This would be one of those pieces of evidence, the prior habituals.
I understand the state of the law. I’m doing it primarily for appellate purposes. And so as long as our argument is preserved, I don’t have any further record. But that’s where we’re — that’s where we stand today.
¶ 46 The court rejected defense counsel’s argument, reasoning that
Colorado law does not require habitual criminal counts to be tried
to a jury. It then proceeded with the evidentiary hearing, during
which the prosecution presented evidence of defendant’s six
previous convictions.
17 ¶ 47 At the end of the hearing, the court found that the prosecution
had met its burden of proving beyond a reasonable doubt that
defendant had been previously convicted of the six prior felonies,
that he was the person who had been convicted in those cases, and
that his prior convictions arose out of separate and distinct criminal
episodes. The court then adjudicated him to be a habitual criminal,
and it imposed the sentence we described above.
2. Standard of Review and Preservation
¶ 48 We review constitutional challenges to a trial court’s
sentencing determinations de novo. Villanueva v. People, 199 P.3d
1228, 1231 (Colo. 2008).
¶ 49 As a threshold matter, the prosecution submits that we should
not address defendant’s challenge to his habitual criminal sentence
because he did not raise it on appeal until his reply brief. While
appellate courts generally do not consider arguments raised for the
first time in a reply brief, see People v. Owens, 2024 CO 10,
¶¶ 90-91, we will in this case because Erlinger, the United States
Supreme Court’s opinion on which defendant’s challenge relies, was
not announced until after defendant filed his opening brief. See
18 Griffith v. Kentucky, 479 U.S. 314, 328 (1987)(applying new rule of
criminal law to “all cases . . . pending on direct review”).
a. Erlinger
¶ 50 Erlinger dealt with a sentencing provision of the federal Armed
Career Criminal Act. It enhanced the sentence of a defendant
convicted of being a felon possessing a firearm if the defendant had
three or more qualifying prior convictions for offenses committed on
separate occasions. 602 U.S. at 835. The United States Supreme
Court held that the Fifth and Sixth Amendments required a jury,
rather than a judge, to decide, unanimously and beyond a
reasonable doubt, whether the prior convictions had indeed
occurred on separate occasions.
¶ 51 In reaching this holding, the Court reiterated that the prior
criminality exception under Almendarez-Torres v. United States, 523
U.S. 224 (1998), “persists as a ‘narrow exception’ permitting judges
to find only ‘the fact of a prior conviction.’” Erlinger, 602 U.S. at
823 (quoting Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013)).
The Court reaffirmed its prior holding that a sentencing judge
“‘cannot go beyond identifying the crime of conviction to explore the
19 manner in which the defendant committed that offense. . . . He can
do no more, consistent with the Sixth Amendment, than determine
what crime, with what elements, the defendant was convicted of.’”
Id. at 840 n.3 (quoting Mathis v. United States, 579 U.S. 500, 511-
512 (2016)).
¶ 52 Defendant asserts that, under Erlinger, a jury, rather than the
court, should have decided whether his prior convictions had been
separately brought and tried, whether he was the person who had
been convicted of those prior convictions, and whether his prior
offenses were “eligible” as predicate convictions, for purposes of
sentencing him as a habitual criminal. He adds that, because of
this alleged error, we must remand the case to the court for
sentencing within the statutory range for second degree murder
because empaneling a new jury to retry his habitual criminal
counts would violate the Constitution’s Double Jeopardy Clause.
¶ 53 We will assume, without deciding, that Erlinger controls our
decision and that the jury, rather than the court, should have made
the three findings that defendant claims it should have made.
Doing so, we nonetheless conclude that (1) the putative error was
not structural; (2) we will apply plain error review; (3) the putative
20 error was not obvious; and, (4) even if it were preserved, there was
sufficient evidence in the record to show that the putative error was
harmless beyond a reasonable doubt. As a result of these
conclusions, we need not address defendant’s contention, based on
the Double Jeopardy Clause, that we must remand the case to the
court for resentencing within the statutory range for second degree
murder.
b. No Structural Error
¶ 54 Contrary to defendant’s assertion, any Erlinger error in this
case was not structural, and is not, therefore, subject to automatic
reversal. See Washington v. Recuenco, 548 U.S. 212, 222
(2006)(“Failure to submit a sentencing factor to the jury, like failure
to submit an element to the jury, is not structural error.”); People v.
Crabtree, 2024 CO 40M, ¶¶ 31-35 (where an element of the
substantive crime was proven to a judge, rather than a jury, the
error was not structural).
c. Plain Error Review
i. Preservation
¶ 55 Defendant did not preserve the contentions that he now
makes.
21 ¶ 56 “Raising the ‘sum and substance’ of an argument is sufficient
to preserve it,” People v. Cooley, 2020 COA 101, ¶ 24, and “[a]n
objection is sufficiently specific when it draws the court’s attention
to the asserted error,” id. Although we do not require talismanic
language to preserve arguments, “[p]arties must make objections
that are specific enough to draw the trial court’s attention to the
asserted error.” Martinez v. People, 2015 CO 16, ¶ 14. Parties must
give the trial court an opportunity to make findings of fact and to
reach conclusions of law. Id. “An adequate objection allows the
trial court a meaningful chance to prevent or correct the error and
creates a record for appellate review.” Id.
¶ 57 Although defense counsel made a general objection that “this
trial needs to go to a jury under the United States and Colorado
Constitutions,” counsel did not say that the jury should decide
specific factual questions such as whether defendant’s prior
convictions had been separately brought and tried, whether he was
the person who had been convicted in those prior cases, and
whether the prior crimes were eligible as predicate convictions. As
a result, counsel’s general objection did not alert the court to what
he now asserts are reasons to reverse defendant’s sentence so that
22 the court could find facts and reach legal conclusions. Rather, the
court was not given a chance to prevent or to correct any error.
¶ 58 We will therefore review defendant’s assertions for plain error.
See Hagos v. People, 2012 CO 63, ¶ 14.
ii. Obviousness
¶ 59 To warrant reversal under plain error review, the court’s error
must, among other things, be obvious. Id. To be obvious “an error
must contravene a clear statutory command, a well-settled legal
principle, or established Colorado case law.” Crabtree, ¶ 42. And
we must decide whether the error was obvious at the time it
occurred in the trial court, not at the time of the appeal. Id. at
¶¶ 6-8.
¶ 60 The putative error in this case was not obvious because, when
the court denied defense counsel’s request for a jury to resolve the
habitual criminal counts, it followed existing Colorado law. See
People v. Huber, 139 P.3d 628, 633 (Colo. 2006); Lopez v. People,
113 P.3d 713, 723 (Colo. 2005); People v. Session, 2020 COA 158,
¶ 26. And, because it followed binding Colorado precedent, its
putative error was not plain. See People v. Tun, 2021 COA 34, ¶ 48.
23 iii. Constitutional Harmlessness
¶ 61 What if we assume that defendant’s assertions had been
preserved? We will review the putative error for constitutional
harmless error. See Hagos, ¶ 11.
¶ 62 But, doing so, we will not reverse defendant’s sentence
because we conclude that the Erlinger error was harmless beyond a
reasonable doubt. The record shows that any rational jury would
have found, beyond a reasonable doubt, that at least four of
defendant’s prior convictions had been separately brought and
tried, that he was the person who had been convicted in those
cases, and that his prior offenses were eligible as predicate
convictions. See United States v. Butler, 122 F.4th 584, 589 (5th
Cir. 2024)(an Erlinger error is harmless if, “[a]fter a careful review of
the whole record . . . any rational petit jury, when presented with a
proper jury instruction, would have found beyond a reasonable
doubt” that the defendant’s prior offenses occurred on different
occasions).
¶ 63 The record reflects that, before the crimes in this case,
defendant pled guilty to six felonies: aggravated robbery in
Tennessee on September 18, 2006; two separately filed cases
24 alleging counts of theft on November 5, 2010; providing false
information to a pawnbroker on September 28, 2012; theft on
October 2, 2012; and possession of a weapon by a previous offender
on March 4, 2016.
¶ 64 The record contains evidence showing that at least four of the
six felonies were separately brought and tried. See § 18-1.3-
801(2)(a)(I) (“[E]very person convicted . . . of any felony, who has
been three times previously convicted . . . of a felony . . . shall be
adjudged an habitual criminal . . . .”). Defendant asserts that his
three theft convictions were not separately brought and tried
because they arose out of incidents occurring within a single week
and that he pled guilty to two of them on the same day. But, even if
defendant’s theft convictions had arisen out of a single criminal
episode, defendant does not dispute that four of his prior
convictions — aggravated robbery, the “package” of the three theft
convictions, possession of a weapon by a previous offender, and
providing false information to a pawnbroker — arose out of separate
and distinct criminal episodes and were separately brought and
tried, as required under the habitual sentencing statute, see § 18-
1.3-801(2)(a)(I)(A).
25 ¶ 65 As proof that there were at least four felonies that were
separately brought and tried, the record contains charging
documents for each conviction. The charging documents listed the
dates of the offenses, and they showed that the felonies had arisen
out of separate criminal incidents. “Charges are separately brought
and tried where they are ‘in separate informations, with separate
docket numbers, arising out of separate criminal incidents.’” People
v. Williams, 2019 COA 32, ¶ 38 (quoting Gimmy v. People, 645 P.2d
262, 267 (Colo. 1982)). “A predicate conviction can result from
either a conviction following trial or a guilty plea.” Id.
¶ 66 The prosecution presented evidence proving that defendant
was the same person as the person convicted in each of the prior
felonies. For example, the prosecution’s proof
• compared defendant’s fingerprints taken at the time of
his arrest in this case with fingerprints taken from his
arrests in the six felony cases listed above and
determined that all the prints came from the same
person;
• contained photographs taken of defendant at the time
of his arrests in all the cases; and
26 • listed the same name, birthdate, Social Security
Number, and place of birth in all the cases.
¶ 67 On top of the factors we have already discussed, a conviction
must be a felony to be eligible to enhance a defendant’s sentence
under section 18-1.3-801(2)(a)(I). And, if the conviction occurred in
another state, such as defendant’s Tennessee conviction for
aggravated robbery in this case, it must be for a crime that would
be a felony in Colorado. Id. Documents in the record show that all
the Colorado predicate convictions were for felonies and that the
Tennessee aggravated robbery conviction would have been a felony
in Colorado.
¶ 68 Last, defendant does not assert that any of the felonies are no
longer eligible to support a habitual criminal sentence. See, e.g.,
Thomas v. People, 2021 CO 84, ¶ 60 (based on a statutory exception
in the habitual criminal statute, level 4 drug felonies are not
“predicate offenses for habitual criminal purposes”).
¶ 69 The judgment of conviction and the sentence are affirmed.
JUDGE KUHN and JUDGE MOULTRIE concur.